Hofstra Labor & Employment Law Journal


This Article examines the constitutional due process impact of the vastly opposite and conflicting standards of review in Title IX sexual assault investigations. Thousands of unionized public employees are subject to the terms and conditions of a public university collective bargaining agreement, which requires a heightened standard of "clear and convincing evidence" to discipline employees. At the same timeperhaps unknowingly-the employee is also held to the strict federally mandated standard of a "preponderance of the evidence," which has a lower standard of review. In short, under the same facts and within the same Title IX investigation, the employee is subject to two conflicting legal standards. The circumstances and facts revealed that many Title IX sexual assault investigations can lead to: employee discipline, suspension, termination or even a private right of action. With this valuable right at stake for unionized public university employees, the legal conflict surrounding standards of review has manifested as one of the nation's most pressing social, political, and legal matters of this decade.

By examining this constitutionally important case, I define and articulate the historical and legal origins of (1) collective bargaining rights in the public sector; (2) the origins of Title IX from its initial legislative embodiment to its present day form; and (3) the intersection of unionization and due process rights in Title IX sexual assault investigations which result in an unintended constitutional conflict that may challenge at the core the legal permissibility of the manner in which sexual assault investigations are conducted nationwide. At the outset, I use two major research strategies: (1) a qualitative analysis and nationwide data sample of numerous public sector university collective bargaining agreements; and (2) established legal precedent. Data has been collected from interviews, newspapers, legal precedent, case law and published reports.

Undoubtedly, this Article challenges the constitutionality of the "preponderance of the evidence" standard. While public institutions and public employee unions grapple with this important issue at the grassroots level, the facts uncovered in this critical research reveals that, upon legal challenge to the U.S. Supreme Court, the now ubiquitous "preponderance of the standard," ostensibly mandated by the U.S. Department of Education's 2011 Dear Colleague Letter is, in fact, contrary to federal law and violates the Due Process Clause of the U.S. Constitution.

This contention is not made lightly however. For what is at stake for public education institutions, Congress, the courts, labor unions and the like is of utmost legal importance. Yet, in view of the legal precedent revealed in this research, there can be only one reasonable conclusion when the evidence is considered in its totality; the April 2011 Dear Colleague Letter is not binding law. Rather, it is merely suggestive agency guidance cleverly held out to the public as binding law but, in actuality, lacks the necessary constitutional authority sufficient to withstand legal challenge.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.